In a 5-4 decision written by Justice Kennedy, with 4 separate dissents, the US Supreme Court holds that the 14th Amendment requires all 50 states to recognize Same Sex Marriage (SSM). Some of the more pertinent quotes and ideas from the Majority Opinion:
- “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”
- Religious institutions have a First Amendment right to advocate against same sex marriage.
- “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. … [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
- “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.”
- The majority opinion states that same-sex marriage is a fundamental right on “four principles and traditions”: (1) right to personal choice in marriage is “inherent in the concept of individual autonomy”; (2) “two-person union unlike any other in its importance to the committed individuals”; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.”
- “Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”
There were 4 separate dissenting opinions: Justices Roberts, Scalia, Thomas and Alito. Key language among the dissenting opinions:
- Justice Scalia feels the majority opinion is a “threat to American democracy”.
- Justice Thomas believes that the majority’s conception of liberty will have “inestimable consequences for our Constitution and our society.”
- Justice Alito believes that the decision will cause anyone who opposes same sex marriage to be vilified and branded as bigots.
Practice pointers. The Majority Opinion and Dissents total 103 pages. This is just a brief summary of breaking news.
- The Majority recognizes the right of Religious Institutions NOT to perform SSM, and to speak out against it.
- The Majority Opinion makes it clear that valid SSM from other states must be recognized in all 50 states.
- Employers need to be careful when hiring, discipline and terminating employees who are in a SSM. I will discuss this further in an upcoming blog post.
Should employers have any questions about what to do concerning SSM, they should consult their legal advisors.